Will Europe’s ‘Right to Be Forgotten’ Become an Unprecedented Global Censorship Regime?

Yesterday, the Article 29 Data Protection Working Party issued a press release providing more detailed guidance on how it would like to see Europe’s so-called “right to be forgotten” implemented and extended. The most important takeaway from the document was that, as Reuters reported, “European privacy regulators want Internet search engines such as Google and Microsoft’s Bing to scrub results globally.” Moreover, as The Register reported, the press release made it clear that “Europe’s data protection watchdogs say there’s no need for Google to notify webmasters when it de-lists a page under the so-called “right to be forgotten” ruling.” (Here’s excellent additional coverage from Bloomberg: “Google.com Said to Face EU Right-to-Be-Forgotten Rules“). These actions make it clear that European privacy regulators hope to expand the horizons of the right to be forgotten in a very significant way.

The folks over at Marketplace radio asked me to spend a few minutes with them today discussing the downsides of this proposal. Here’s the quick summary of what I told them:

• European privacy regulators are basically calling for an unprecedented global censorship regime that would impose their speech preferences and controls on the entire planet.
• Europe has no right to tell the rest of the world how to structure their policies governing online freedom of speech, yet they are trying to strong-arm major American tech companies like Google to do so indirectly.
• This is a grave threat to freedom of speech, freedom of expression, and Internet openness.
• This move sends a horrible signal to oppressive regimes worldwide. It could lead to a race to the bottom with governments in other countries attempting to export their own speech preferences to the rest of the global. You can kiss global Internet freedom goodbye if that happens.
• Relatedly, if European policymakers persist in these efforts, it could lead to future trade wars, even among friendly countries. Layers of speech controls like this could become formidable non-tariff barriers to trade and limit the growth of cross-border electronic commerce in the process.
• This certainly doesn’t help competition. Ironically, this news comes during the same week that we have learned some European policymakers want to break up Google on antitrust grounds. But the more that European regulators push Google to enforce global speech controls like this, the more market power those policymakers give the company! Google is one of the few companies that might be able to hire enough lawyers and engineers to comply with such a regulatory regime. Few other tech companies – and certainly no small startups – could ever hope to comply with this ruling. In essence, it’s a new regulatory barrier to entry that diminishes digital entrepreneurialism.
• Correspondingly, it’s another innovation-killer for Europe. If Europeans wonder why they fell so far behind in terms of Internet innovation over the past decade, they might consider looking at the wisdom of overly-restrictive data controls and speech regulations like this.
• Privacy is certainly an important value, and more could be done to protect it. But what European regulators are proposing here is completely over the top. It is like trying to kill a fly with an elephant gun. There are more sensible ways to encourage privacy protection.
• Instead of trying to export their speech controls and bully global innovators, European policymakers should just consider creating their own, government-funded search engines and then force their own citizens to use them. Let them try to create their own anti-free speech fortress and see how their citizens feel about living inside it.

Stay tuned, more to come on this front. In the meantime, here’s another response worth reading from of David Meyer of GigaOm.

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